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Access to records

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How may an individual obtain access to health records after a Medicaid patient dies?

More specifically, is there any provision in HIPAA or other privacy law that allows release of records without utilizing state probate law?

Does your thought differ if this a parent-minor child situation and the parent had been provided records prior to the child’s death?

Sharon Hockett

Categories : HIPAA Q&A


  1. Sharon Hallberg says:

    Can the question be expanded to query the requirements for release of records to family members for any release of PHI, not only for Medicare?
    What documents need to be submitted to prove who is the executor to which documents can be released (Certificate/Letter of Qualification, Letters of Administration, Letters of Testamentary)? Do the documents need to be signed by a judge or can a signature of a clerk or deputy clerk be sufficient? If the HIPAA release statement is signed by the family member and is stated as the “executor” as relationship to the deceased, is that sufficient?

    How much latitude is there for “permissible” release of information in sorting out the various documents submitted?

  2. Yvonne Wolters, Kaiser Ohio Privacy & Security Officer says:

    HIPAA law provides that an “individual’s legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased individual or his estate, as a personal representative” with respect to obtaining PHI of the deceased person. See HHS website FAQs at: http://www.hhs.gov/ocr/privacy/hipaa/faq/smaller_providers_and_businesses/222.html

    In the case where there is probate, the document needed in order for the executor to obtain medical records is the judge’s letter stating the assignment as executor/administrator is valid.

    Where there are no assets, meaning no probate and therefore no executor/administrator of the estate, then you would need to go to the state next of kin laws to determine who has the authority to act on behalf of the deceased to request medical records.


  3. A Add says:

    We have actually had this happen. We had a request for an audit to be done of records, and the mother and daughter of the deceased patient did have medical POA before her death, but after her death, according to our attorney, this is not legal and they must go through probate. The family said the deceased woman had no property, and they were not going through probate or having a legal rep. appointed by the court. Our HIPAA lawyer said we could only release information to a court appointed legal rep. Therefore, we can not release any information. If/when a legal rep. is established, we will be able to release information.

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